Speech by Lady Justice Arden DBE: Is Commercial Arbitration the Future of Commercial Justice?

Intervention by the Rt Hon Lady Justice Arden DBE

The arbitration world is, I understand, flourishing in Australia. There has been an increase in the use of commercial arbitration and Australia is becoming an ever more popular location for cross-border dispute resolution by arbitration. The pro-arbitration approach of Australian law, and the very high standards of its judiciary and observance of the rule of law, have assisted in this development.

Some states have a panel of specialist judges and also a dedicated arbitration list which enables them to offer a quick turn around and a consistent and high quality service to litigants.

In addition, Australian courts have adopted a restrictive interpretation of the public policy ground for refusal of enforcement of a foreign award. The High Court of Australia has held that enforcement of an award is not to be refused by the courts simply because the court has not satisfied itself as to the correctness of the award (TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd). The conceptual basis for this conclusion is significant. Crucially the High Court concluded that enforcement of an award does not mean enforcement of rights and obligations imposed by the general law but of rights and obligations created by the parties’ agreement, which have merged into an award. In a liberal democracy, the courts allow parties to set up their own regime of rights and obligations…..

 

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